United States District Court, D. Nevada
R. HICKS, UNITED STATES DISTRICT JUDGE
the court is defendant Jessie Mendoza's motion to dismiss
count three of his indictment. ECF No. 52. The United States
filed a response (ECF No. 54), to which Mendoza replied (ECF
No. 62). The court finds that Mendoza has not demonstrated
that there is a realistic probability that a defendant can
commit Hobbs Act robbery through the use of nominal (i.e.,
de minimis) force or through reckless, unintentional
conduct. He has therefore failed to establish that this crime
is not categorically a crime of violence under 18 U.S.C.
§ 924(c), and the court will deny his motion.
is charged by indictment with one count of interference with
commerce by robbery under the Hobbs Act (“Hobbs Act
robbery”), 18 U.S.C. § 1951, (count 2) and a
related conspiracy count (count 1). ECF No. 9. He is also
charged with brandishing a firearm in furtherance of a
“crime of violence” under 18 U.S.C. §
924(c)(1)(A) (count 3). Id. This final count alleges
that the Hobbs Act robbery charged in count 2 satisfies
section 924(c)'s crime-of-violence element. Id.
at 2-3. Mendoza now moves to dismiss count 3.
Federal Rule of Criminal Procedure 12(b)(3)(B)(v), a
defendant may file a pre-trial motion seeking to dismiss a
count of the indictment for “failure to state an
offense . . . .” “When ruling on a pretrial
motion to dismiss an indictment, the district court is bound
by the four corners of the indictment and must accept the
allegations in the indictment as true.” United
States v. Smith, 215 F.Supp.3d 1026, 2016 WL 2901661, at
*2 (D. Nev. 2016) (citing United States v. Jensen,
93 F.3d 667, 669 (9th Cir. 1996)). “‘A motion to
dismiss [an] indictment cannot be used as a device for a
summary trial of the evidence, ' and the court
‘should not consider evidence not appearing on the face
of the indictment.'” Id. (alteration in
original) (quoting Jensen, 93 F.3d at 669).
18 U.S.C. § 924(c)(1)(A), it is a felony to use or carry
a firearm “during and in relation to any crime of
violence . . . .” This statute therefore creates an
offense separately punishable from the other
concurrently-charged offense that the indictment alleges is a
crime of violence. Section 924(c) defines “crime of
violence” as a felony that
(A) has as an element the use, attempted use, or threatened
use of physical force against the person or property of
(B) that by its nature, involves a substantial risk that
physical force against the person or property of another may
be used in the course of committing the offense.
18 U.S.C. § 924(c)(3). The first clause in this
definition is commonly referred to as either the “force
clause” or “elements clause, ” while the
second clause is known as the “residual clause.”
Because the definition is worded disjunctively, a felony need
only categorically match one of the two clauses in order to
constitute a crime of violence and thus satisfy that element
under section 924(c)(1)(A).
the United States has alleged in the indictment that the
concurrently-charged count of Hobbs Act robbery (count 2) is
a crime of violence. ECF No. 9 at 2-3. The Hobbs Act
“prohibits any robbery or extortion or attempt or
conspiracy to rob or extort that ‘in any way or degree
obstructs, delays or affects commerce or the movement of any
article or commodity in commerce.'” United
States v. Rodriguez, 360 F.3d 949, 953 (9th Cir. 2004)
(quoting 18 U.S.C. § 1951(a)).
has moved to dismiss count three of his indictment, the
section 924(c) charge, arguing that Hobbs Act robbery is not
a crime of violence. He first contends that the court may not
apply the residual clause because it is void for vagueness in
light of the U.S. Supreme Court's decision in Johnson
v. United States, 135 S.Ct. 2551 (2015)
(“Johnson 2015”) and the Ninth
Circuit's decision in Dimaya v. Lynch, 803 F.3d
1110 (9th Cir. 2015), cert. granted, 137 S.Ct. 31
(2016). Mendoza further argues that Hobbs Act robbery is not
a categorical match for the force clause.
discussed below, the court finds that Hobbs Act robbery is
categorically a crime of violence under the force clause. In
turn, the court need not decide whether the residual clause
is unconstitutionally vague. See Ashwander v. Tenn.
Valley Auth., 297 U.S. 288, 347 (1936) (“It is not
the habit of the court to decide questions of a
constitutional nature unless absolutely necessary to a
decision of the case.”).
The categorical approach applies to this analysis
initial matter, Mendoza contends-and the United States does
not dispute-that courts apply the categorical approach in
determining whether an offense concurrently charged with a
violation of section 924(c) is a crime of violence. This
court agrees. Traditionally, the categorical approach is an
analytical framework that sentencing courts must
apply in determining whether a defendant's prior
state or federal offenses mandate a sentence enhancement by
satisfying either the violent-felony definition under the
Armed Career Criminal Act (“ACCA”) or the
crime-of-violence definition under the U.S. Sentencing
Guidelines (“U.S.S.G.”). See Taylor v. United
States, 495 U.S. 575 (1990) (the ACCA); United
States v. Becerril-Lopez, 541 F.3d 881 (9th Cir. 2008)
(the U.S.S.G.). However, “the Ninth Circuit has
consistently held that the categorical analyses apply to
§ 924(c) crime-of-violence determinations both at trial
and at sentencing ‘without regard to whether the given
offense is a prior offense or the offense of conviction
[i.e., a concurrently-charged offense].'”
Smith, 2016 WL 2901661, at *4 (quoting United
States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006)).
the categorical approach, a court may only “compare the
elements of the statute forming the basis of the
defendant's [prior] conviction [or concurrently-charged
offense] with the elements of” a crime of violence.
Descamps v. United States, 133 S.Ct. 2276, 2281
(2013) (emphasis added); see also United States v.
Benally, 843 F.3d 350, 352 (9th Cir. 2016). Therefore, a
court may not examine “[h]ow a given defendant actually
perpetrated the crime- what [the Supreme Court has] referred
to as the ‘underlying brute facts or means' of
commission . . . .” Mathis v. United States,
136 S.Ct. 2243, 2251 (2016) (citation omitted). “The
defendant's crime cannot categorically be a ‘crime
of violence' if the statute . . . punishes any conduct
not encompassed by the statutory definition of a ‘crime
of violence.'” Benally, 843 F.3d at 352.
Such statutes are often referred to as
“overbroad.” See, e.g., United
States v. Castillo- Marin, 684 F.3d 914, 919 (9th Cir.
statute is overbroad, a court may then determine whether the
concurrently-charged offense that the statute defines
“can be divided into violations that constitute”
a crime of violence and “others that do not.”
United States v. Dixon, 805 F.3d 1193, 1196 (9th
Cir. 2015). Such statutes are referred to as
“divisible, ” meaning that they “list
elements in the alternative, and thereby define multiple
crimes.” Mathis, 136 S.Ct. at 2249. However, a
statute that is worded disjunctively is not necessarily
divisible. Id.; see also Rendon v. Holder,
764 F.3d 1077, 1086 (9th Cir. 2014). “If the statute is
indivisible, [the] inquiry ends, because a conviction under
an indivisible, overbroad statute can never”
categorically be a crime of violence. Lopez-Valencia v.
Lynch, 798 F.3d 863, 867 (9th Cir. 2015).
when a statute is overbroad and divisible” may courts
apply the “modified categorical approach. At this step,
[courts] may examine certain documents . . . to determine
what elements of the divisible statute [the defendant] was
convicted of violating.” Id.
for a court to find that a statute is overbroad
“requires more than the application of legal
imagination to a . . . statute's language.”
Gonzales v. Duenas-Alvarez, 549 U.S. 183, 193
(2007). This finding “requires a realistic probability,
not a theoretical possibility, ” that a statute would
apply to conduct not encompassed by the
crime-of-violence definition. Id. “To show
that realistic probability, an offender . . . may show that
statute was so applied in his own case. But he must at least
point to his own case or other cases in which . . . courts in
fact did apply the [offense] in the special . . . manner for
which he argues.” Id. However, if a statute
“explicitly defines” the concurrently-charged
offense more broadly than the crime-of-violence definition,
then “no ‘legal imagination, ' is required to
hold that a realistic probability exists that” the
offense is overbroad. Chavez-Solis v. Lynch, 803
F.3d 1004, 1009 (9th Cir. 2015).
The Hobbs Act is divisible but Hobbs Act robbe ...